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Can democratic government survive? Slouching towards Gomorrah - excerpt from book 'Slouching towards Gomorrah'

National Review, Sept 16, 1996 by Robert H. Bork

Although Americans still invest a great deal of time and energy in the electoral process, the country is in fact governed by unelected institutions -- and they are changing the very nature of our society.

SIR Henry Maine made the point that, looking back, we are amazed at the blindness of the privileged classes in France to the approach of the Revolution that was to overwhelm them. Yet Maine finds "the blindness of the French nobility and clergy eminently pardonable. The Monarchy . . . appeared to have roots deeper in the past than any existing European institution." In his own place and time, men looked upon popular government and the democratic principle as destined to last forever. Maine asked whether the confidence of the French upper classes just before the Revolution "conveys a caution to other generations than theirs." In the following century, of course, nations that had adopted the democratic principle, in whole or in part, rejected it for totalitarian systems.

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Yet we seem at least as sanguine about the prospects for democratic government as were Maine's contemporaries. The democratic principle is in rhetorical ascendancy everywhere, and yet it is worth asking whether in actuality, as a matter of practice rather than declamation, it is not in retreat, particularly in what had been its strongest bastion, the United States. Unlike the sudden cataclysm that overtook the French monarchy, ours appears to be a slow crisis, a hollowing out of democracy from within, that gives ample warning of the unhappy condition toward which matters tend.

Modern liberalism is fundamentally at odds with democratic government because it demands results that ordinary people would not freely choose. Liberals must govern, therefore, through institutions that are largely insulated from the popular will.

In his First Inaugural Address, Abraham Lincoln asserted: "The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." Lincoln was thinking of Dred Scott, the infamous decision that created a constitutional right, good against the Federal Government, to own slaves. Today, however, his observation is even more pertinent, as we have resigned into the hands of the federal judiciary ever more vital questions affecting the whole people.

There seems no possibility of retrieving democratic government from the grasp of the Supreme Court, which now governs us in the name of the Constitution in ways not remotely contemplated by the framers and ratifiers of that Constitution. Professor Lino Graglia concludes:

The hope that this situation can be changed by shifts in personnel on the Court has been shown to be futile. Eleven consecutive appointments to the Court by Republican Presidents pledged to change the Court's direction have not resulted in the overruling of a single major ACLU victory or even halting the flow of ACLU victories. . . . The Court will continue to serve as the mirror, mouthpiece, and enacting arm of a cultural elite that is radically alienated from and to the left of the ordinary citizen. . . .

The only practical way of reining in the Supreme Court is a constitutional amendment making its rulings subject to democratic review. As matters now stand, the Court's assumption of complete governing power is intolerable, and yet, absent a constitutional amendment, we have no way of refusing to tolerate it.

The question is not only one of the illegitimacy of the Court's performance in usurping powers that belong to the people and their elected representatives. The judiciary is slowly disintegrating the basis for our social unity.

We too often forget that the liberties guaranteed by our Constitution were not based on legalisms or moral theorizing but upon the historical experience of being governed by the British Crown. Our Constitution, and most particularly our Bill of Rights, were designed to prevent the Federal Government from becoming as oppressive as British rule was perceived to be. But as the historical meaning of the Constitution fades from memory, or is regarded as irrelevant, its guarantees begin to change. We have a student who can say, with no sense of incongruity, that speech should not be free unless it is also correct.

As it departs from the constitutional text and history that give our rights life, rootedness, and meaning, and substitutes abstractions reflecting modern liberalism's agenda, the Supreme Court brings itself and the entire concept of the rule of law into disrepute. It expends a dwindling moral capital and weakens both political authority and the possibility of a common culture. The increasing legalization of our culture is a sign of the fracturing of that culture, the continuing disappearance of the vestiges of unity. Professor John Gray, after discussing the fragmentation of British culture, noted:

Can democratic government survive? Slouching towards Gomorrah - excerpt from book 'Slouching towards Gomorrah'

National Review, Sept 16, 1996 by Robert H. Bork

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